Shawn Garvin

Director, EPA Region 3

1650 Arch St

Philadelphia, PA 19103-2029

 

November 8, 2011

Re: Questions concerning EPA regulation of Oil & Gas

 

 

Mr Garvin,

 

I hereby request written, preferably electronic, responses to each of the questions below pertaining to EPA’s role in regulating Oil & Gas. I shall post copies of this letter, as well as any response and further dialogue it generates, to CleanUpGas.org. The questions are grouped under these headings.

 

 

 

— EPA exemptions for Oil & Gas —

EPA has enabled unwarranted and unjustifiable exemptions for Oil & Gas. Perhaps the best known is the “Halliburton loophole” which exempts Oil & Gas from reporting the chemicals they use. It was part of the 2005 energy bill, and was enabled by a deeply flawed 2004 EPA report. EPA whistleblower Wilton Wilson called attention to the fact that, not only are some of the assertions in this report dubious, but the report’s conclusions contradict facts contained in its own main body. A congressional panel confirmed Mr Wilson’s claims, yet the exemption still stands.

 

A second egregious exemption is the classification by fiat of all wastes originating from oil or gas wells as residual waste. In 1989 EPA evaluated whether such wastes should be regulated as hazardous waste under the Resource Conservation and Recovery Act. It found that most such wastes studied contained hazardous substances, in some cases at extremely high levels, and that EPA was regulating some of these materials as hazardous waste in other contexts, nevertheless EPA decided these Oil & Gas wastes didn’t need to be classified as hazardous.

 

One particularly worrying aspect of this irresponsible decision is the fact that much of this material is being transported on public roads in trucks and by drivers both of which have been removed from service by the Pennsylvania State Police at unacceptably high rates.

 

Trucks/drivers removed from service during Operation FracNET inspection sweeps.

dates

inspections
conducted

trucks
removed

drivers
removed

% trucks
removed

% drivers
removed

6 / 14-16 / 2010

1,137

250

45

22

4

9 / 27-29 / 2010

1,135

208

64

18

6

10 / 25-27 / 2010

1,175

207

52

18

4

3 / 15-16 / 2011

731

131

14

18

2


A consequence of this inappropriate waste classification is that it is allowed to be stored in open pits. This has resulted in widespread death, illness and other health effects for livestock and wildlife out West, to say nothing of human health impacts. We are already beginning to see the same problems here in Pennsylvania.  This article, http://stateimpact.npr.org/pennsylvania/2011/09/27/burning-questions-quarantined-cows-give-birth-to-dead-calves, reports that Carol Johnson, a Tioga County farmer, "warns hunters she sees near her prop­erty not to eat any of the game they catch. 'Deer, grouse, rab­bits, they’re up on that [well] pad lick­ing,' she says. 'They don’t know what’s in the water.…The whole thing has become one big mess.'" A leaking frack pond on the Johnson farm resulted in their cattle being quarantined for possible strontium exposure, and DEP hauled the contaminated soil to an Ohio landfill.

.

Is there any explanation for contaminated soil being hauled to Ohio other than it needed to go to a hazardous waste landfill? Can you explain how residual waste stored in an open pit becomes hazardous waste when it leaks? Shouldn’t EPA require analysis of these wastes to determine what is in them before deciding if they are hazardous or residual? Wouldn’t the responsible course of action be to assume these wastes are hazardous until proven otherwise?

 

Do you consider the above, and other, DEP exemptions for Oil & Gas appropriate? If so, please justify them. If not, please explain what you have done to get them rescinded.

 

A major rationale for granting the Halliburton loophole was the claim that most of the frack fluid returns to the surface. In the Marcellus, industry claims that as little as 20% is returning. Why hasn’t this caused the Halliburton loophole to be reconsidered? Have you taken any action in this regard?

 

It is my understanding that Pennsylvania’s geology is inappropriate for injection disposal wells. Can you please explain the difference between an injection disposal well and an oil or gas well where 80% of the frack fluid remains in the ground? Or why fracking should even be permitted in an area that is not suitable for injection disposal wells? What is the difference between hazardous waste and toxic frack fluid under extreme pressure a mile underground?

 

— Comprehensive harms/benefits analysis —

Just the Pennsylvania portion of Marcellus Shale gas extraction will result in the industrialization of over 10,000 square miles.

 

Would a modern society, which has the slightest regard for its citizens, undertake such a massive project without first completing a comprehensive harms/benefits analysis? Does EPA have the authority to require such a study? If so, why haven’t you done so? If not, have you contacted anyone urging that such a study be undertaken, or issued any public statements advocating such a study? Do you have any further comments on whether such a study should be undertaken? Would you agree that a critical component of such a study would be a life cycle analysis of the greenhouse gas emissions of this activity, as opposed to industry’s narrow focus on emissions from burning the gas?

 

— Baseline water testing and monitoring —

Wouldn’t responsible development of a gas field entail proper baseline testing and monitoring of both aquifers and surface water? Can you suggest any motivation, other than minimizing the liability exposure of the gas industry, for not requiring proper baseline water testing and monitoring? Does EPA have the authority to require this? If so, why haven’t you done so? If not, have you contacted anyone or issued any public statements advocating proper water testing and monitoring?

 

Would you care to comment on these quotes, which were emailed to me in 2010 by a water treatment professional working in North Central Pennsylvania? “I see so many problems with the whole process.  Those of us in the ground water industries are really concerned, even if you can forget about the contamination possibilities, the amount of water withdrawn form the water table is almost devastating, especially in a year with so little recharge.  There needs to be more third party oversight, gas companies being allowed to run virtually unregulated for years has given them an attitude that they know what's best, and we don't know crud." And, "The people in my industry think it's criminal what the gas companies do, but property owners see that money, and caution goes to the wind."

 

— Air pollution & asthma —

Out West gas extraction has resulted in terrible air pollution including ground level ozone. For example, the previously pristine area around the Pinesdale and Jonah gas fields in South West Wyoming now experiences air pollution on par with such urban areas as Los Angeles and Houston. In Texas’ Barnett Shale, where gas extraction has been shown to account for roughly half the region’s air pollution, asthma rates are as high as 25% as opposed to 7.1% statewide among children of certain ages.

 

Why shouldn’t we expect similar problems here? Why should such conditions be acceptable? Doesn’t EPA have a responsibility to protect our air? What have you done to prevent or mitigate this pollution? Has EPA undertaken or required baseline air quality testing and monitoring?

 

As part of his spin against SMU’s study by Dr. Al Armendariz showing the large amount of air pollution coming from gas extraction in the Barnett Shale, Ed Ireland, an industry spokesman, said, “prevailing winds actually blow pollution away from the D-FW area.” Has EPA mapped the plumes of air pollution coming from gas fields? If so, are these maps available to the public? If not, why? Can you enumerate any air pollution originating in distant gas fields that is impacting Pennsylvania?

 

— Best practices —

There are various best practices which industry has failed to embrace; green completions instead of flaring, steel tanks instead of open pits, piping water to and from wells rather than trucking it. Even the recycling of flowback was only forced upon the industry by the unavailability of other cheaper options. Their preferred method of disposal out West, where water is so scarce as to spawn literal water wars, was evaporation. Evaporation is not an option in our climate. The nearest injection disposal wells are in Ohio. And their attempt at simply diluting their toxic waste in our rivers was a disaster, as any rational observer could have predicted and many of us did.

 

Does EPA have the authority to mandate best practices? If so, why hasn’t it? What actions have you taken to lobby for mandatory best practices?

 

— Nondisclosure agreements —

One of the most insidious Oil & Gas practices is the use of nondisclosure agreements to gag the victims of its pollution. They then have the gall to claim that none of the millions of gas and oil wells drilled to date have resulted in contaminated water being delivered to people.

 

Perhaps the best-known example of gagging victims through nondisclosure agreements is that of Laura Amos, which was fairly well documented in the film Split Estate. I have varying degrees of personal information on up to a dozen local contamination events which I have been told, or surmised from a previously vocal victim suddenly “not wanting to talk about it”, that a nondisclosure agreement was involved. The most serious case is that of a Tioga County resident who got acute heavy metal poisoning when his well was contaminated by nearby gas extraction; he allegedly would have died without an expensive experimental drug which the CDC arranged for him to get from Norway. This case has not been mentioned by DEP or in the media.

 

PA DEP told me in an email, “... sometimes residents contact the gas company directly when they believe they have a problem, work out a mutually acceptable solution, and the Department never hears about it.”  I asked my county commissioners, “If I come onto your land and kill one of your relatives, should we be able to come to a mutually agreeable settlement without the state getting involved?” When I then asked why gas companies can pollute people’s water without having to report the incident, they replied, “This is a legal issue, we’re not going to get involved;” a statement I can’t reconcile with their oft made reassurance to the public that, “our water is too important to take chances with.”

 

Why doesn’t EPA require that all alleged contamination be reported? Does water pollution respect property boundaries?  Don’t those downstream have a right to know? Shouldn’t there be a map of all alleged incidents so the public knows what is happening? Isn’t your mandate to protect the environment, and human health, or is it to protect the gas industry’s substantial profits?

 

— State oversight —

In reviewing NY DEC’s DSGEIS for horizontal fracking I was struck by the degree to which all the state agencies which submitted letters in support – including PA DEP – were whitewashing the industry’s record. No mention was made of numerous problems I had learned about through my own research.

 

In 2008, I attended a presentation on the Marcellus by DEP and the PA Cooperative Extension. When asked about the chemicals used, the DEP rep said, “It’s mostly water and sand, and a few soap-like chemicals.” Not quite as bad as what I later learned DEP had previously been saying, “It’s just sand and water, what’s there to worry about?” Both statements were completely inappropriate; blatantly biased propaganda being spread by an agency people trusted to protect them and to provide them with accurate information.

 

I have also encountered this erroneous statement, “You need to have your water tested if a gas well is to be drilled within 1,000’ of your water well,” both in print and at several presentations. Given that the driller is presumed to have caused any contamination within 1,000’, this misinformation is harmful in two respects. It wastes the money of those who test water within 1,000’ of a future gas well, and more importantly, it misleads people into thinking that water beyond that 1,000’ radius needn’t be tested, when that is precisely the water whose quality needs to be documented before any drilling. This mistake is clearly a boon to industry because every case of contamination where the landowner hasn’t tested beforehand can be challenged with a claim of “pre-existing condition” regardless of how specious. Given the importance of the distinction between where landowners should test and where it is a waste of money, as well as the simplicity of keeping the two straight, the number of times I’ve seen it made and the other inappropriate pro-industry actions taken by regulators, I really have to wonder if this is an honest mistake or a deliberate lie.

 

Finally, I’d like to call your attention to this email exchange I had with DEP, http://cleanupgas.org/_files/StrontiumGoats.htm. If strontium contamination resulted in the Johnson’s cattle being quarantined and the affected soil being hauled away, why did DEP stonewall my report about goats which may have been exposed to strontium rather than investigate it? Is this a case that EPA would investigate? Is there additional information that you would need in order to investigate? Would you at least ask Shell, who took over East Resources, whether such an incident occurred?

 

In general, doesn’t EPA have a responsibility to ensure that state agencies are doing a proper job in enforcing environmental regulations? If so, can you cite any examples where EPA stepped in because a state agency was too lax? What about the provision in HB 1950, which would privatize the permitting process for gas wells? Is that something you approve of? If so, why? If not, what can you do about it?

 

— In Conclusion —

I believe we need a moratorium on new leases until a comprehensive harms/benefits analysis has been completed. I urge you to do all you can to affect such a moratorium, even if it is merely a public statement calling for one. What is your position on this?

 

My two final questions to you are what I refer to as Accountability 101. What negative impacts of Marcellus gas extraction concern you? What have you done to address them?

 

I look forward to your reply.

 

Thank you,

 

 

 

John Kesich

 

kesich@CleanUpGas.org

570-549-2286

628 Bailey Creek Rd

Millerton, PA 16936

Tioga County